Exhibit 4.3
EXECUTION COPY
▇▇▇▇▇▇▇ RIVER ASSOCIATES INCORPORATED
$75,000,000 AGGREGATE PRINCIPAL AMOUNT
2.875% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2034
RESALE REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 21, 2004
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of June 21, 2004, between
▇▇▇▇▇▇▇ River Associates Incorporated, a Massachusetts corporation (together
with any successor entity, herein referred to as the "COMPANY"), and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as representative (the "REPRESENTATIVE") of the several initial
purchasers (the "INITIAL PURCHASERS") set forth on Schedule I to the Purchase
Agreement (as defined herein).
Pursuant to the Purchase Agreement, dated June 15, 2004, between the
Company and the Representative (the "PURCHASE AGREEMENT"), the Initial
Purchasers have agreed to purchase from the Company $75,000,000 (up to
$90,000,000 if the Initial Purchasers exercise their option in full) in
aggregate principal amount of 2.875% Convertible Senior Subordinated Debentures
due 2034 (the "DEBENTURES") of the Company. The Debentures will be convertible
into fully paid, nonassessable shares of common stock, no par value, of the
Company (the "COMMON STOCK"). The Debentures will be convertible on the terms,
and subject to the conditions, set forth in the Indenture (as defined herein).
To induce the Initial Purchasers to purchase the Debentures, the Company has
agreed to provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ADDITIONAL INTEREST": As defined in Section 3(a) hereof.
"ADDITIONAL INTEREST PAYMENT DATE": Each June 15 and December 15.
"AFFILIATE" of any specified person means any other person, which, directly
or indirectly, is in control of, is controlled by or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise. The
terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"AMENDED EFFECTIVENESS DEADLINE DATE": As defined in Section 2(e) hereof.
"BLUE SKY APPLICATION": As defined in Section 6(a)(i) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"COMMISSION": The Securities and Exchange Commission.
"COMMON STOCK": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"CONVERSION PRICE": As defined in the Indenture.
"DEBENTURES": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
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"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of June 21, 2004, between the Company
and U.S. Bank National Association, as trustee (the "TRUSTEE"), pursuant to
which the Debentures are to be issued, as such Indenture may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS": As defined in the preamble hereto.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal
amount of Debentures outstanding; PROVIDED that, for the purpose of this
definition, a holder of Shares that constitute Transfer Restricted Securities
shall be deemed to hold an aggregate principal amount of Debentures (in addition
to the principal amount of Debentures held by such holder) equal to the quotient
of (x) the number of such shares of Common Stock held by such holder and (y) the
conversion rate in effect at the time of such conversion, redemption or
repurchase as determined in accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"NOTICE AND QUESTIONNAIRE": A written notice executed by the respective
Holder and delivered to the Company containing substantially the information
called for by the Selling Securityholder Notice and Questionnaire attached as
Appendix A to the Offering Memorandum of the Company issued June 15, 2004
relating to the Debentures.
"NOTICE HOLDER": On any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
"PERSON": An individual, partnership, corporation, company, unincorporated
organization, trust or joint venture or a government or agency or political
subdivision thereof.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"RECORD HOLDER": With respect to any Additional Interest Payment Date, each
Person who is a Holder of Debentures that constitute Transfer Restricted
Securities on the June 1 or December 1 immediately preceding the relevant
Additional Interest Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"REPRESENTATIVE": As defined in the preamble hereto.
"SECURITIES ACT": The Securities Act of 1933, as amended.
"SHARE": Each share of Common Stock issued or issuable upon conversion of
Debentures.
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"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof and,
for purposes of Sections 2(d), 2(e), 3(a) (other than clauses (i) and (ii)
thereof), 4, 5, 6 and 9(c) hereof, includes a Subsequent Shelf Registration
Statement.
"SUBSEQUENT SHELF REGISTRATION STATEMENT": As defined in Section 2(c)
hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(i) hereof.
"TIA": The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Debenture and each Share until the
earliest of:
(i) the date on which such Debenture or Share has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement;
(ii) the date on which such Debenture or Share is transferred in
compliance with Rule 144 under the Securities Act or may be sold or
transferred by a person who is not an affiliate of the Company pursuant to
Rule 144 under the Securities Act (or any other similar provision then in
force) without any volume or manner of sale restrictions thereunder; or
(iii) the date on which such Debenture or Share ceases to be
outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).
"UNDERWRITTEN REGISTRATION": A registration in which Debentures or Shares
held by a Holder are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. SHELF REGISTRATION.
(a) The Company shall:
(i) not later than 90 days after the first date of original
issuance of the debentures (the "SHELF FILING DEADLINE"), cause to be filed
a registration statement pursuant to Rule 415 under the Securities Act (the
"SHELF REGISTRATION STATEMENT"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities held by Holders
that have provided the information required pursuant to the terms of
Section 2(b) hereof;
(ii) use commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the Commission not later
than 180 days after the first date of original issuance (the "EFFECTIVENESS
TARGET DATE"); and
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(iii) use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 4(b) hereof to the extent necessary
to ensure that (A) it is available for resales by the Holders of Transfer
Restricted Securities entitled, subject to Section 2(b), to the benefit of
this Agreement and (B) conforms with the requirements of this Agreement and
the Securities Act and the rules and regulations of the Commission
promulgated thereunder as announced from time to time, for a period (the
"EFFECTIVENESS PERIOD") until the earliest of:
(A) two years following the last date of original issuance
of any of the Debentures;
(B) the date when the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately without restriction pursuant to the
volume limitation provisions of Rule 144 under the Securities
Act; or
(C) the date when all of the Transfer Restricted Securities
have been sold either pursuant to the Shelf Registration
Statement or pursuant to Rule 144 under the Securities Act or
any similar provision then in force.
(b) At the time the Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the date that
is no fewer than fifteen (15) Business Days prior to such time of effectiveness
shall be named as a selling securityholder in the Shelf Registration Statement
and the related Prospectus in such a manner as to permit such Holder to deliver
such Prospectus to purchasers of Transfer Restricted Securities in accordance
with applicable law. Prior to the filing of the Shelf Registration Statement,
the Company shall use its reasonable best efforts to obtain waivers from the
Company's securityholders (other than the Holders of Transfer Restricted
Securities) that have the right to include any of the Company's securities in
the Shelf Registration Statement.
(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all Transfer Restricted Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Transfer Restricted Securities), the Company shall use
its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty (30)
days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are Transfer
Restricted Securities (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep
such Registration Statement (or Subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
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(d) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Securities Act or as reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the Holders of the Transfer Restricted
Securities covered by such Shelf Registration Statement.
(e) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(e) and Section
4(b). Each Holder wishing to sell Transfer Restricted Securities pursuant to a
Shelf Registration Statement and related Prospectus agrees to deliver a Notice
and Questionnaire to the Company prior to any intended distribution of Transfer
Restricted Securities under the Shelf Registration Statement. From and after the
date the Shelf Registration Statement is declared effective the Company shall on
or before the later of (x) forty-five (45) Business Days after the date a Notice
and Questionnaire is delivered or (y) ten (10) Business Days after the
expiration of any Suspension Period in effect when the Notice and Questionnaire
is delivered or put into effect within forty-five (45) Business Days of such
delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Transfer Restricted Securities in
accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use
commercially reasonable efforts to cause such post-effective amendment to
be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "AMENDMENT EFFECTIVENESS
DEADLINE DATE") that is sixty (60) days after the date such post effective
amendment is required by this clause to be filed:
(ii) provide such Holder copies of any documents filed pursuant to
Section 2(e)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(e)(i);
PROVIDED that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, (i) the Company
shall not be under any obligation to name any Holder that is not a Notice Holder
as a selling securityholder in any Shelf Registration Statement or related
Prospectus, (ii) the Company shall not be obligated to file more than two
post-effective amendments pursuant to this
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Section 2(e) in any one fiscal quarter and (iii) the Amendment Effectiveness
Deadline Date shall be extended by up to ten (10) Business Days from the
expiration of a Suspension Period (and the Company shall not incur any
obligation to pay Additional Interest during such extension) if such Suspension
Period shall be in effect on the Amendment Effectiveness Deadline Date.
3. ADDITIONAL INTEREST.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target Date;
(iii) the Company has failed to perform its obligations set forth in
Section 2(e) within the time periods required therein;
(iv) any post-effective amendment to a Shelf Registration Statement
filed pursuant to Section 2(e)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline Date;
(v) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within ten (10)
Business Days by a post-effective amendment to the Shelf Registration
Statement, a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act that cures such failure and, in the case of a post-effective amendment,
is itself immediately declared effective; or
(vi) the Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period, shall thereafter cease to
be effective or fail to be usable for its intended purpose and (A) prior to
or on the thirtieth (30th) day or the forty-fifth (45th) day, as the case
may be, of any Suspension Period, such suspension has not been terminated
or (B) Suspension Periods exceed an aggregate of 120 days in any 360 day
period,
(each such event referred to in foregoing clauses (i) through (vi), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay interest ("ADDITIONAL
INTEREST"), with respect to the Transfer Restricted Securities from and
including the day following the Registration Default to (but excluding) the
earlier of (1) the day on which the Registration Default has been cured and (2)
the date the Shelf Registration Statement is no longer required to be kept
effective, in respect of the Debentures, to each holder of Debentures accruing
at a rate of (x) with respect to the first ninety (90)-day period during which a
Registration Default shall have occurred and be continuing, equal to 0.25% per
annum of the outstanding principal amount thereof, and (y) with respect to the
period commencing on the ninety-first (91st) day following the day on which the
Registration
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Default shall have occurred and be continuing, equal to 0.50% per annum of the
outstanding principal amount thereof; PROVIDED that in no event shall Additional
Interest accrue at a rate per year exceeding 0.50% of the outstanding principal
amount thereof.
(b) All accrued Additional Interest shall be paid in arrears to
Record Holders by the Company on each Additional Interest Payment Date, except
as provided in Section 3(c) hereof. Upon the cure of all Registration Defaults
relating to any particular Debenture, the accrual of Additional Interest with
respect to such Debenture will cease.
(c) If the Debentures are surrendered for conversion during a
Registration Default, the Record Holders of the Debentures so surrendered for
conversion will receive on the settlement date all accrued and unpaid Additional
Interest with respect to such Debentures as provided in Section 3(a)(A) hereof
to (but excluding) the conversion date relating to the settlement date.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
The Additional Interest set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 4(b) hereof and shall
use commercially reasonable efforts to effect such registration to permit the
sale of the Transfer Restricted Securities, and pursuant thereto, shall as
expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to such registration on any appropriate form
under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii)(D), use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective during the Effectiveness
Period; and upon the occurrence of any event that would cause the Shelf
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the Effectiveness Period,
file promptly an appropriate amendment to the Shelf Registration Statement,
a supplement to the Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the
case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use commercially reasonable efforts
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to cause such amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for their intended
purposes as soon as practicable thereafter; EXCEPT that notwithstanding the
foregoing, the Company may suspend the effectiveness of the Shelf
Registration Statement (or the use of the Prospectus that is part of the
Shelf Registration Statement) by written notice to the Holders for a period
not to exceed an aggregate of thirty (30) days in any ninety (90)-day
period (PROVIDED, HOWEVER, that if such fact or event relates to a
previously undisclosed proposed or pending material business transaction,
the disclosure of which would impede the Company's ability to consummate
such transaction, the Company may extend the period during which it may
suspend the Registration Statement to a period not to exceed forty-five
(45) days in any ninety (90)-day period) (each such period, a "SUSPENSION
PERIOD") upon:
(x) the occurrence or existence of any fact or the
happening of any event as a result of which the Shelf
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein would, in the Company's judgment, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; or
(y) the occurrence or existence of any corporate
development that, in the Company's judgment, makes it
appropriate to suspend the effectiveness of the Shelf
Registration Statement;
PROVIDED that the Company will use its reasonable best efforts to ensure
that the use of the Prospectus may be resumed (A) in the case of clause (x)
above, as soon as, in the reasonable judgment of the Company, public
disclosure of such fact or event would not be prejudicial to or contrary to
the interests of the Company or, if necessary to avoid unreasonable burden
or expense, as soon as practicable thereafter and (B) in the case of clause
(y) above, as soon as, in the reasonable judgment of the Company, such
suspension is no longer appropriate; PROVIDED, HOWEVER, that Suspension
Periods shall not exceed an aggregate of 120 days in any 360-day period,
and in no event shall the Company be required to specify in the written
notice to the Holders the nature of the fact or event giving rise to the
Suspension Period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with respect
to the disposition of all Debentures or Shares covered by the Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in the Shelf Registration Statement or supplement to the Prospectus.
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(iii) (x) Advise the selling Holders promptly and, if requested by
such selling Holders, to confirm such advice in writing, except as provided
in clause (D) below:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
the Shelf Registration Statement or any post-effective
amendment thereto, when the same has become effective;
(B) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or to the
Prospectus included therein or for additional information;
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes; or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that requires the
Company to make changes in the Shelf Registration Statement or
the Prospectus contained therein, in order that such Shelf
Registration Statement or Prospectus does not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading.
(y) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement, or any
state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use its reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time and will provide to
each Holder who is named in the Shelf Registration Statement prompt notice
of the withdrawal of any such order.
(iv) Make available at reasonable times for inspection by one or
more representatives of the selling Holders, designated in writing by a
Majority of Holders whose Transfer Restricted Securities are included in
the Shelf Registration Statement, and any attorney or accountant retained
by such selling Holders, all financial and other records, pertinent
corporate documents and properties of the Company as shall be reasonably
necessary to enable them to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act, and cause the Company's
officers, directors, managers and employees to supply all information
reasonably requested by any such representative or representatives of the
selling Holders, attorney or accountant in connection therewith; PROVIDED,
HOWEVER, that the Company shall not have any obligation to deliver
information to any selling Holder or representative, attorney or accountant
pursuant to this Section
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4(b)(iv) unless such selling Holder or representative, attorney or
accountant shall have executed and delivered a confidentiality agreement in
a form acceptable to the Company relating to such information.
(v) If requested by any selling Holders, promptly incorporate in
the Shelf Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling
Holders may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon its request, without
charge, at least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Holder may request).
(vii) Deliver to each selling Holder, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; subject to
any notice by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section
4(b)(iii)(D), the Company hereby consents to the use of the Prospectus and
any amendment or supplement thereto by each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto.
(viii) Before any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions in the United States
as the selling Holders may reasonably request and do any and all other acts
or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; PROVIDED, however, that the Company shall not be
required (A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action that
would subject it to the service of process in any jurisdiction where it is
not now so subject or (B) to subject itself to general or unlimited service
of process or to taxation in any such jurisdiction where it is not now so
subject.
(ix) Cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends (unless
required by applicable securities laws); and enable such Transfer
Restricted Securities to be in such denominations and registered in such
names as the Holders may request at least two Business Days before any sale
of Transfer Restricted Securities.
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(x) Use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have occurred,
use their reasonable best efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading.
(xii) Obtain CUSIP numbers for all Transfer Restricted Securities not
later than the effective date of the Shelf Registration Statement and
provide the Trustee under the Indenture with certificates for the
Debentures that are in a form eligible for deposit with The Depository
Trust Company.
(xiii) Cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter that is required to be retained in accordance with the rules
and regulations of the NASD.
(xiv) Otherwise use their reasonable best efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act.
(xv) Cause the Indenture to be qualified under the TIA not later
than the effective date of the Shelf Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee
and the holders of Debentures to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of the TIA; and execute and use its reasonable best efforts to
cause the Trustee thereunder to execute all documents that may be required
to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a
timely manner.
(xvi) Cause all Shares covered by the Shelf Registration Statement to
be listed or quoted, as the case may be, on each securities exchange or
automated quotation system on which Common Stock is then listed or quoted.
(xvii) Provide to each Holder upon written request each document filed
with the Commission pursuant to the requirements of Section 13 and Section
15 of the Exchange Act after the effective date of the Shelf Registration
Statement, unless such document is available through the Commission's ▇▇▇▇▇
system.
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(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact or occurrence of any event of the kind
described in Section 4(b)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until:
(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the
Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder agrees by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Shelf Registration Statement; or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company with
a Notice and Questionnaire as required pursuant to Section 2(e) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Transfer Restricted Securities as the
Company may from time to time reasonably request in writing. Any sale of any
Transfer Restricted Securities by any Holder shall constitute a representation
and warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to or
provided by such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating to
or provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which
they were made, not misleading.
5. REGISTRATION EXPENSES.
All expenses incident to the Company's performance of or compliance with
this Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
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(ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of Prospectuses
and certificates for the Shares to be issued upon conversion of the
Debentures) and the Company's expenses for messenger and delivery services
and telephone;
(iv) all fees and disbursements of counsel to the Company;
(v) all application and filing fees in connection with listing (or
authorizing for quotation) the Shares on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Holder
of Transfer Restricted Securities covered by the Shelf Registration Statement
(including each Initial Purchaser), and its directors, officers, and employees
and each person, if any, who controls any such Holder within the meaning of the
Securities Act or the Exchange Act (each, an "INDEMNIFIED HOLDER"), against any
loss, claim, damage, liability or expense, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to resales of the Transfer Restricted Securities),
to which such Indemnified Holder may become subject, insofar as any such loss,
claim, damage, liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a material
fact contained in (A) the Shelf Registration Statement as originally filed
or in any amendment thereof, in any Prospectus, or in any amendment or
supplement thereto or (B) any blue sky application or other document or any
amendment or supplement thereto prepared or executed by the Company (or
based upon written information furnished by or on behalf of the Company
expressly for use in such blue sky application or other document or
amendment or supplement) filed in any jurisdiction specifically for the
purpose of qualifying any or all of the Transfer Restricted Securities
under the securities law of any state or other jurisdiction (such
application or document being hereinafter called a "BLUE SKY APPLICATION");
or
14
(ii) the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading,
and agrees to reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; PROVIDED, HOWEVER, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein; PROVIDED, FURTHER, that with respect to any such
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus contained in the Shelf Registration Statement,
the indemnity agreement contained in this paragraph shall not inure to the
benefit of any Indemnified Holder to the extent that any such loss, claim,
damage or liability of or with respect to such Indemnified Holder to any person
results from the fact that both (i) a copy of the final prospectus contained in
the Shelf Registration Statement (excluding any documents incorporated by
reference therein) was not sent or given to such person, at or prior to the
written confirmation of the sale of such Transfer Restricted Securities to such
person, and (ii) the untrue statement in or omission from such preliminary
prospectus contained in the Shelf Registration Statement was corrected in such
final prospectus unless such failure to deliver the final prospectus contained
in the Shelf Registration Statement was a result of non-compliance by the
Company with the provisions of Section 4 hereof; PROVIDED, FURTHER, that with
respect to any such untrue statement or alleged untrue statement in or omission
or alleged omission from any prospectus, the indemnity agreement contained in
this paragraph shall not inure to the benefit of any Indemnified Holder to the
extent that any such loss, claim, damage or liability of or with respect to such
Indemnified Holder to any person results from the fact that (i) such prospectus
has been amended or supplemented by the Company in accordance with the terms of
this Agreement, (ii) a copy of the prospectus, as amended or supplemented
(excluding any documents incorporated by reference therein), was not sent or
given to such person at or prior to the written confirmation of the sale of such
Transfer Restricted Securities to such person and (iii) the untrue statement in
or omission from such prospectus was corrected in the prospectus, as
supplemented or amended, unless such failure to deliver the prospectus, as
supplemented or amended, was a result of non-compliance by the Company with the
provisions of Section 4 hereof; PROVIDED, FURTHER, that the indemnity agreement
contained in this paragraph shall not inure to the benefit of any Indemnified
Holder to the extent that any such loss, claim, damage or liability of or with
respect to such Indemnified Holder to any person results from an offer or sale
by the Indemnified Holder of Transfer Restricted Securities during a Suspension
Period, if such Indemnified Holder received a Suspension Notice prior to the
making of such offer or sale. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company, its directors, officers and employees and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act to the same extent as the
15
foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement set
forth in this Section shall be in addition to any liabilities which any such
Holder may otherwise have. In no event shall any Holder, its directors, officers
or any person who controls such Holder be liable or responsible for any amount
in excess of the amount by which the net proceeds received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds the amount of any damages that such Holder, its
directors, officers or any person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Holders shall have the right to employ a single counsel to represent jointly
the Holders and their officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the Holders against the Company under this Section 6 if the Holders
seeking indemnification shall have been advised by legal counsel that there may
be one or more legal defenses available to such Holders and their respective
officers, employees and controlling persons that are different from or
additional to those available to the Company, and in that event, the fees and
expenses of such separate counsel shall be paid by the Company.
(d) The indemnifying party under this Section shall not be liable
for any settlement of any proceeding effected without its written consent, which
shall not be withheld unreasonably, but if settled with such consent or if there
is a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by Section 6 hereof, the
16
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than thirty (30) days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be unreasonably
withheld), effect any settlement, compromise or consent to the entry of judgment
in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement,
compromise or consent (x) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding and (y) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability
(or action in respect thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and
the indemnified party on the other, or
(ii) if the allocation provided by Section (6)(e)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in Section 6(e)(i) but
also the relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or alleged omissions that
resulted in such loss, claim, damage or liability (or action in respect
thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Debentures purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(e) were determined by PRO RATA
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this
paragraph (e).
17
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
Section 6(e) are several and not joint.
(f) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company or any of the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive the sale by a Holder of Transfer Restricted
Securities.
7. RULE 144A AND RULE 144. The Company agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding and during
any period in which the Company (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A, and (ii) is subject to Section 13
or 15 (d) of the Exchange Act, to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.
8. NO PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder.
9. MISCELLANEOUS.
(a) REMEDIES. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 2 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely, and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2
hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
18
(b) ACTIONS AFFECTING TRANSFER RESTRICTED SECURITIES. The Company
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(c) NO INCONSISTENT AGREEMENTS. . Except for (i) the Stock Purchase
Agreements, dated April 30, 2004, between the Company and certain employees of
InteCap, Inc. and (ii) the Stock Purchase Agreement, dated October 18, 2000,
between the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, which provide for certain registration
rights upon the filing of a registration statement by the Company, the Company
has not, as of the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. In addition, the Company shall
not on or after the date hereof grant to any of its securityholders (other than
the Holders of Transfer Restricted Securities in such capacity) the right to
include any of their securities in the Shelf Registration Statement provided for
in this Agreement other than the Transfer Restricted Securities.
(d) AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a Majority of Holders; PROVIDED, HOWEVER, that with respect to any
matter that directly or indirectly adversely affects the rights of any Initial
Purchaser hereunder, the Company shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), (1) a waiver or consent to depart from the provisions
hereof, with respect to a matter, which relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Shelf Registration
Statement and does not directly or indirectly adversely affect the rights of
other Holders, may be given by the Majority of Holders, determined on the basis
of Debentures or Shares being sold rather than registered under such Shelf
Registration Statement, and (2) this Agreement may be amended or supplemented
without notice to or consent of any Holder to (i) cure any ambiguity or omission
or to correct or supplement any provision contained herein that may be defective
or inconsistent with any other provisions contained herein or (ii) add to the
covenants of the Company such further covenants, restrictions or conditions for
the benefit of the Holders.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture or the transfer agent of the Common Stock, as
the case may be; and
(ii) if to the Company, initially at its address set forth in the
Purchase Agreement.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three (3)
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(f) THIRD PARTY BENEFICIARIES. The Holders shall be the third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Representative, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Company and its respective successors and assigns.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) DEBENTURES HELD BY THE COMPANY OR THEIR AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities held
by the Company or its Affiliates (other than subsequent Holders if such
subsequent Holders are deemed to be Affiliates solely by reason of their holding
of such Debentures) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(j) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(k) GOVERNING LAW. This Agreement shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of the State of New York (including
Section 5-1401 of the New York General Obligations Law or any successor to such
statute).
(l) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby, it being intended that all of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(m) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and
20
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
▇▇▇▇▇▇▇ RIVER ASSOCIATES
INCORPORATED
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President and CFO
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[RESALE REGISTRATION RIGHTS AGREEMENT]
